Court No. - 34
Case :- WRIT - A No. - 38882 of 2003 Petitioner :- Balchand Ram Respondent :- District Basic Education Officer District Ghazipur and others Counsel for Petitioner :- Anand Vijai,Anant Vijai,Brij Raj,Pramod Kumar Pandey Counsel for Respondent :- C.S.C.,B.P. Singh,Khurshid Anwar
Hon'ble Sudhir Agarwal, J.
1. Heard learned counsel for petitioner. None has appeared on behalf of respondents though it has been called in revised. Hence, I proceed to decide the writ petition ex parte, after hearing learned counsel for petitioner.
2. Service rendered by petitioner before the institution was taken in grant-in-aid has not been taken into account, hence this writ petition.
3. Learned counsel for petitioner pointed out that this issue has already been considered by this Court in Civil Misc. Writ Petition No. 15893 of 2003 (Chandra Prakash Verma Vs. Regional Deputy Director of Education and others) decided on 17.11.2006 wherein this Court has passed following order:
“Heard Km. Rashmi Tripathi, holding brief of Sri Anil Bhushan, learned counsel for the petitioner and Sri Yogendra Kumar Yadav, learned standing counsel appearing for the respondent nos. 1 to 3. None has appeared on behalf of respondent no. 4, though the case has been called in the revised list.
The petitioner has come to this Court invoking extra ordinary jurisdiction under Article 226 of the Constitution of India aggrieved by the order dated 4.2.2003 passed by the Regional Deputy Director of Education, 3rd Region, Bareilly (Respondent no. 1) rejecting his representation and declining to count petitioner's earlier service rendered from 7.2.1957 to 19.11.1970 as extension teacher in government college on the ground that there was a break of five months and 15 days in service after his subsequent appointment in the government college as Principal on 1.5.1971 and, therefore, the aforesaid service cannot be treated to be qualifying service pursuant to the government order dated 18.10.1997.
The facts giving rise to this petition are that the petitioner was appointed as Extension Teacher under the orientation scheme of the State Government on 5.2.1957. He worked in the said capacity till 18.11.1970 at B.E.R.S. Inter College, Raja Ka Rampur, District Etah. On 19.1.1970, he was appointed as Lecturer (Economics) at Raghunath Singh Smarak Inter College, Anchal Kalan. Bulandshahar where he worked till 4.5.1971 whereafter appointed as Principal at Rastra Sewa Sadan Inter College, Bhakrauli, District Badaun and retired on attaining the age of superannuation on 30.6.1996. His pension papers were processed and for the purpose of computation of pension, qualifying service of the petitioner has been taken by the respondents from 5.5.1971 to 30.6.1996 only and the earlier service rendered as Extension Teacher from 5.2.1957 to 18.11.1970 and as Lecturer (Economics) from 19.11.1970 to 4.5.1971 has not been included in qualifying service for the purpose of pension and other retiral benefits. It is averred that during the period petitioner worked as Extension Teacher pursuant to the Government Scheme, he was member of General Provident Fund and the contribution was regularly deducted but during the period he worked at Rathunath Singh Smarak Inter College from 19.11.1970 to 4.5.1971, no provident fund was deducted since the said institution was not aided. Placing reliance on the Government Order dated 16.9.1996 it is said that he is entitled for addition of his service from 5.2.1957 to 18.11.1970 for the purpose of computation of pension and other retiral benefits.
A counter affidavit has been filed by the respondents stating that the Government Order dated 18.10.1997 has no application in the case of the petitioner, since it is applicable only to such teachers, who retired on and after issuance of the said Government Order as provided in para-3 thereof. The aforesaid Government Order provides that break in service from one institution to another should not be more than the period which is permissible as joining time during the period of transfer. It is further said since the petitioner has worked in a non-aided private institution and there was break of such a long time, therefore, his earlier service cannot be counted for the purpose of pension. In para-14 of the counter affidavit, it is averred that management's contribution has been deposited for the period February 1972 to 1995-96. and the contribution for the earlier period has not been deposited by the management, therefore, no benefit of past service can be extended.
Rival contentions of the parties give rise to the short question as to whether the petitioner is entitled to count his service from 5.2.1957 to 18.11.1970 and whether the five months and 15 days service rendered by him in a un-aided institution would wipe out the entire previous service for the purpose of retiral benefits.
It is not disputed that right of the teachers who were appointed in Government service and prior thereto have worked in non-aided institution, whether entitled to count their service in non government institution, had been considered by the State Government from time and again. Initially by the Government Order dated 13.6.1979 it decided to count service rendered in the non-Government private Institutions by a teacher before his appointment in the government service. The said Government Order was cancelled by G.O. dated 10.1.1985. Again vide G.O. dated 16.9.1996 all those teachers, who retired between 10.6.1979 to 10.1.1988, their past service rendered in non-government institution was directed to be added for the purpose of computation of pension provided the contribution of the employer has been deposited in the government treasury towards contributory provident fund. The aforesaid Government Order nowhere provides that the service of only such teachers which has been rendered in an aided non- government institution will be taken into account but it apply to all the non-government institution whether aided or unaided.
Moreover, on judicial side also, this issues came up for consideration before this Court in Ramjee Das Vs. State of U.P. 1997 (1) ESC 284 and it was held that the service rendered as Extension Teacher in a private institution shall be added for calculating pension and a mandamus was issued accordingly. This Court relying on its earlier judgment in Ram Janam Singh Vs. Dy. Director of Education & others in para-5 held as under:
"In my opinion, this writ petition deserved to be allowed. I have held in Ram Janam Singh Vs. Dy. Director of Education and Others, in writ petition No. 11855 of 1994, decided on 14.9.1995 that even the period for which the petitioner worked as a clerk has to be added in the length of his service. Similarly in Ram Raksh Pal Vs. State of U.P. and others Writ petition No. 34579 of 1993 decided on 1.9.1995, it has been held that even the service in a private institution has to be added to the length of the service."
Subsequently in Chandra Mohan Vs. Director of Education (Secondary) and others Writ Petition No. 36127 of 1997 decided on 29.2.2000, the aforesaid view was followed and it was held that the service rendered in the private institution should be added in the length of service for the purpose of computation of pension. Recently, similar question came for consideration before an Hon'ble Single Judge in Jadav Ram Gupta Vs. State of U.P. through Director Pension and others, Writ Petition No. 45594 of 2002 decided on 19.9.2003 and this Court while holding that the service rendered in a private institution is liable to be included for the purpose of computation of pension where the said institution is run by the local body, also declared para-5 of the Government Order dated 18.10.1997 as arbitrary and illegal. In view of the aforesaid decision, reliance placed on para-5 of the aforesaid Government Order is totally misconceived.
Now coming to the question as to whether earlier past service is liable to be added or not and whether the service rendered by the petitioner in a un-aided institution amounts to break in service, I am of the opinion that since in the past all the teachers who retired upto 10.1.1988 were extended the benefit of addition of entire service rendered in a recognized non government institution irrespective of the fact whether the institution was aided or unaided vide Government Order dated 16.9.1996, I do not find any reason to deny similar benefit to the petitioner also who retired on 30.6.1996, that is the date prior to issuance of the Government Order dated 16.9.1996. There does not appear to be any justification for confining such benefit only to the teachers who retired upto 10.1.1988 and not to extend the same benefit to those, who retired thereafter and at least fill the issuance of the Government Order dated 16.9.1996. In the matter of extension of pensionary benefits to the employees, who have already retired, an arbitrary and irrational classification cannot be read and accepted. In D.S. Nakara & others Vs. Union of India and others 1983 (1) SCC 305, the Supreme Court held-".......though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and ) ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question."
The respondents have not assigned any reason or justification not to extend government order dated 16.9.1996 to the teachers who retired after 10.1.1988. The service rendered by the teachers whether they retired after 10.1.1988 or before in a non government institution is of same quality and similar in all other aspects except cut of date. No rational or valid reason has been provided to confine the benefit of such Government Order only to the teachers who retired upto 10.1.1988.
In view of the aforesaid discussion, in my view, the petitioner is entitled for addition of his service rendered from 5.2.1957 to 18.11.1970 for the purpose of computation of pension and other retiral benefits and the Government Order dated 16.9.1996 in so far as has confined benefit to only those teachers who retired upto 10.1.1988, to that extent is arbitrary and discriminatory being violative of Article 14 of the Constitution of India and is quashed only to that extent i.e. cut of date 10.1.1988 is declared illegal and arbitrary. The Court declare that the benefit of the said Government Order would be applicable to all the teachers who retired at least till the date of issuance of the said Government Order.
In the result, the writ petition succeeds and is allowed. The order date 4.2.2003 passed by respondent no. 1 is hereby quashed. A mandamus is issued to the respondents to re-fix pension of the petitioner by addition of service rendered by him from 7.2.1957 to 18.11.1970 towards computation of pension and other retiral benefits in the service already qualify for the said purpose with all consequential benefits. Re-fixation of pension and retiral benefits shall be completed and paid by the respondents within six months from the date of production of a certified copy of this order before the authority concerned.
In the facts and circumstances, the parties shall bear their own costs.”
4. Having gone through the aforesaid judgment, I find that the issue raised in this writ petition is squarely covered by the aforesaid judgment. Therefore, for the reasons stated in the judgment in Chandra Prakash Verma Vs. Regional Deputy Director of Education and others (supra), the writ petition is allowed. Impugned order dated 12.05.2003 is hereby set aside. Respondents are directed to pass appropriate order in accordance with law.
Dt. 26.10.2018 PS